Cook v. State , 56 Ga. App. 375 ( 1937 )

MacIntyre, J.

1. While the testimony was in sharp conflict, there was evidence to the effect that after the defendant, Arthur Cook, and Eddie Lee Jordan and her two sisters had engaged in a vei'bal battle accompanied with mutual threats, they entered into a struggle for the possession of the defendant’s shotgun which one of the sisters had, and that after a1 tussle the defendant got possession of the gun and shot and killed Eddie Lee Jordan with it when she was five or six feet from him and making no attempt to injure him. The evidence supported the verdict of voluntary manslaughter.

2. Having been indicted for murder and convicted of voluntary manslaughter, the verdict was an acquittal of the charge of murder (Jordan v. State, 22 Ga. 545 (11)), and the defendant can not complain of alleged errors in the court’s instructions upon the law of murder. McDuffie v. State, 121 Ga. 580 (14) (49 S. E. 708); Horton v. State, 43 Ga. App. 324 (6) (158 S. E. 629). It follows that there is no merit in grounds 1, 2, 3, 4, and 5 of the amendment to the motion for new trial.

Decided September 9, 1937. O. L. Redman, for plaintiff in error. Fronte B. Willingham, solicitor-general, contra.

3. The court did not err in instructing the jury that it was for them “to determine whether or not there was a mutual intent to fight, upon the part of this defendant with the deceased.”

Judgment affirmed.

Broyles, O. J., and Guerry, J., concur.